Smith v. Doe
- Supreme Court to Hear Megan's Law Cases. On Wednesday, November 13, the Supreme Court will hear arguments in two cases determining the constitutionality of posting Megan's Law registries on line. In August, EPIC filed an amicus brief (PDF), urging the Court to hold that the Alaska Megan's law statute violates the Ex Post Facto clause of the Constitution because the mandatory online dissemination of a sex offender registry is excessive when weighed against the statutory purpose of protecting people in the geographic vicinity of released offenders. In tomorrow's consolidated hearing, the Court will also review the Second Circuit's determination that the Connecticut Megan's Law violates procedural due process. (Nov. 12, 2002)
- EPIC Files Amicus Against On-Line Offender Registry. EPIC filed an amicus brief (PDF) with the Supreme Court, urging the Court to uphold the circuit court's decision that the Alaska Megan's law statute violates the Ex Post Facto clause of the Constitution. EPIC argues that the mandatory online dissemination of a sex offender registry is excessive when weighed against the statutory purpose of protecting people in the geographic vicinity of released offenders. (Aug. 05, 2002)
A Brief History of Megan's Laws
In 1996, President Bill Clinton signed legislation that directed state legislatures to adopt statutes that would not only require convicted sex offenders to register with their local law enforcement agency after release, but added the component of granting access to such registries to the public. Though registration for use by law enforcement agencies had been long been required, the idea of notification was relatively novel. Over time, each state and the District of Columbia adopted statutes modeled after the federal legislation, referred to as Megan's Law, in memory of a seven-year-old girl, raped and murdered by a neighbor who, unbeknownst to her family, was a convicted sex offender. Such legislation has undergone perhaps as many adaptations as states that have adopted it. The Supreme Court has granted certiorari to review the Alaska state legislature's interpretation of Megan's Law, which the U.S. Court of Appeals for the Ninth Circuit has reviewed and deemed unconstitutional
On February 19, 2002, the United States Supreme Court decided that it would review a decision of a federal appeals court which determined that an Alaska law, permitting inclusion of the names, addresses, descriptions, and other private information in a sex offender registry broadcast over the Internet was violative of the federal Constitution. The Alaska law was the state's adaptation of federal legislation, commonly called Megan's Laws, allowing notification to the public of the locations of convicted sex offenders upon their release. The federal law directing such notification was enacted in 1996 after the slaying of Megan Kanka, a seven year old New Jersey girl by a neighbor who had been released after serving time for sex offenses.
The appeals court found that the information to be included in the registry was too broad and that the methods of gathering that information were extremely burdensome. Most importantly, the appeals court found that the intent of protecting those in the geographical area of individuals required to register was not furthered by allowing people all over the world to access the personal data included in the registry.
Though it did not directly address the issues of the registrant's personal privacy, the court found that the law--permitting notification of the names and other information of those registered--resulted in an additional punishment to the registrants. Because the law applied retroactively to individuals who had completed their sentences for crimes committed before the statute was amended to provide Internet notification, the law was unconstitutional and, therefore, invalid.
Two years before the federal appeals court reviewed the Alaska case, another federal appeals court had written an opinion regarding a very similar Utah statute. Deciding the case on the same legal grounds as the other appeals court, the appeals court reviewing the Utah statute had a very different outcome. That court upheld the Utah sex offender registration statute.
Though there were some differences between the Utah and Alaska statutes, both permitted the registries to be published on the Internet. The appellate courts, in their opinions, expressed very different views about the effect of listing the registries on the Internet. The court reviewing the Alaska statute fount that Internet publication supported a finding that the registries were intended to further punish the affected individuals since they provided their personal information to those outside the registered individual's immediate geographical community who were not even arguably at risk and could not be benefited by notification of the individual's whereabouts. The other appeals court, however, found that the publication on the Internet was simply an extension of the legal system's practice of public trials and public imposition of sentence. That court determined that the manner in which public information could be found was irrelevant and did not address the fact that the registries potentially included information that would not be found in public arrest, trial, and sentencing records, such as the type of vehicle the registering individual drives.
Often, the argument for providing notification requirements in sex offender registries is supported by studies that allege high rates of recidivism for those convicted of sex crimes. However, these studies are often plagued with problems such as faulty measurements, inconsistent evaluation periods, and are inconclusive. Some studies have claimed to show that notification does not affect recidivism, while others argue that recidivism is higher when individuals' identity as sex offenders are reinforced by widespread notification.
Not only is the judgment of the effect of registration and notification on the sex offender inconclusive, the effect on the general public has been questioned as well. There is some evidence that citizens do not make use of sex offender registries, no matter how they are disseminated, and there are accounts of offenses committed against victims who had access to the names and whereabouts of their attackers through registries.
The Internet may not be the proper vehicle for the dissemination of sex offender registration information. The provision of sensitive, personal information regarding any individual globally is arguably excessive and could lead to misuse of the registry information. Less intrusive methods have been suggested to serve the purpose of allowing those in close geographical proximity of a convicted sex offender to protect themselves from the possibility of future criminal acts. When weighing the privacy rights of the individual with the dissemination of his personal information for reasons, the effectiveness of which is speculative at best, it is at least clear that statutes should be as narrowly tailored as possible to meet the needs of both the public and the individual. If sex offender registry and notification laws are to work for the good of the entire public, inclusive of those who have made past mistakes, broadly drawn laws that address much more than the issues at hand can subject affected individuals to the virtual elimination of their privacy.
Briefs on the Merits
Amicus Briefs -- Respondents
- EPIC's Amicus Brief
- Amicus Brief [pdf] of American Civil Liberties Union, the Alaska Civil Liberties Union, and the National Association of Criminal Defense Lawyers
- Amicus Brief [pdf] of the Office of the Public Defender for the State of New Jersey, the Association of Criminal Defense Lawyers of New Jersey, and the American Civil Liberties Union of New Jersey
Amicus Briefs -- Petitioners
- Amicus Brief [pdf] of the Reporters Committee for Freedom of the Press
- Amicus Brief [pdf] of 41 states in support of Petitioner
- Amicus Brief [pdf] of the United States
Briefs in Support of Certiorari
- Government Brief urging Supreme Court review
- Respondents Brief urging Supreme Court to deny review
- Amicus Brief of Attorneys General of 41 states in support of Petitioner, urging Supreme Court review
Relevant Legal Materials
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Communications Law and Policy
Jerry Kang and Alan Butler